IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.F.A.No.541/2013 BETWEEN:
1. SRI. S.P. SHANKAR AGED 36 YEARS SON OF SRI PANDURANGASA RESIDING AT NO.275/H 1ST FLOOR, 20TH CROSS 21ST MAIN ROAD, M.C. LAYOUT VIJAYANAGAR (BEHIND MARUTHI MANDIR) BENGALURU-40.
2. SRI. S.P. SATHISH AGED 35 YEARS SON OF SRI PANDURANGASA RESIDING AT NO.275/H 1ST FLOOR, 20TH CROSS 21ST MAIN ROAD, M.C. LAYOUT VIJAYANAGAR (BEHIND MARUTHI MANDIR) BENGALURU-40.
3. SRI. S.P. SRIKANTH AGED 33 YEARS SON OF SRI PANDURANGASA RESIDING AT NO.275/H 1ST FLOOR, 20TH CROSS 21ST MAIN ROAD, M.C. LAYOUT VIJAYANAGAR (BEHIND MARUTHI MANDIR) BENGALURU-40.
4. SRI. S.P. NEELAKANTHA AGED 33 YEARS SON OF SRI PANDURANGASA RESIDING AT NO.275/H 1ST FLOOR, 20TH CROSS 21ST MAIN ROAD, M.C. LAYOUT VIJAYANAGAR (BEHIND MARUTHI MANDIR) BENGALURU-40.
5. SRI. S.P. SUNDARAJ AGED 26 YEARS SON OF SRI PANDURANGASA RESIDING AT NO.275/H 1ST FLOOR, 20TH CROSS 21ST MAIN ROAD, M.C. LAYOUT VIJAYANAGAR (BEHIND MARUTHI MANDIR) BENGALURU-40. … APPELLANTS (BY SRI. H.S. SOMANATH, ADVOCATE) AND:
1. SRI. K.B. NARAYANASA AGED ABOUT 61 YEARS SON OF LATE BALAJISA RESIDING AT NO.39 KEMPAPURA AGRAHARA NOW CALLED AS MARIYAPPANAPALYA BENGALURU-560 023.
2. SRI. K.B. RAMA @ RAMUSA AGED ABOUT 56 YEARS SON OF LATE BALAJISA RESIDING AT NO.39 KEMPAPURA AGRAHARA NOW CALLED AS MARIYAPPANAPALYA BENGALURU-560 023.
3. SMT. GOWRAMMA AGED ABOUT 58 YEARS DAUGHTER OF LATE BALAJISA WIFE OF SRI. NAGARAJ RESIDING AT NO.1 SATHUSAPET BENGALURU-53.
4. THE DISTRICT REGISTRAR IN CHARGE OF GANDHINAGAR SUB-REGISTRAR OFFICE PALACE GUTTAHALLI (NEAR JHATKA STAND) BENGALURU-560 020. ... RESPONDENTS (BY SRI. MANJUNATH G KANDEKAR, ADV. FOR R1 TO R3 SRI. T.P. SRINIVASA, AGA FOR R4) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 06.02.2013 PASSED IN O.S.NO.8040/2008 ON THE FILE OF XXVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed against the judgment of dismissal of the suit passed in O.S.No.8040/2008 dated 06.02.2013 on the file of XXVII Additional City Civil Judge, Bengaluru (CCH.9).
2. The parties are referred to as per their original ranks before the Court below as plaintiffs and defendants in order to avoid confusion and for the convenience of the Court.
3. The brief facts of the case:
The plaintiffs have filed the suit against the defendants seeking the relief of declaration that the plaintiffs are the absolute owners of the suit schedule ‘A’ property and also sought for an order of possession in respect of ‘C’ schedule property to an extent of 15 x 15 feet and so also sought for decree of mandatory injunction directing the defendants Nos.1 to 3 to demolish and remove the structures put up by the defendants on the encroached portion to an extent of 15 x 15 feet as described in the ‘C’ Schedule property. The plaintiffs have also sought for judgment and decree declaring the corrections made by the District Registrar in the records of Sub Registrar’s office pertaining to the registered sale deed dated 13.07.1939 vide order dated 24.04.2002 as null and void. The other relief sought by the plaintiffs is for decree of permanent injunction restraining the defendant Nos.1 to 3 from interfering with the peaceful possession and enjoyment of the suit schedule property i.e., ‘A’ and ‘C’ Schedule properties and grant such other reliefs as deem fit in the facts and circumstances of the case.
4. The contention of the plaintiffs in the suit is that earlier to the year 1920, the plaint ‘A’ schedule property was originally belonging to one Sri.Tigalara Kuppanna who died leaving behind his wife Smt.Papamma and his daughter by name Smt.Deveeramma. The said Deveeramma sold the suit schedule ‘A’ property to one Smt.Chinnubayamma by executing a registered sale deed dated 19.04.1920. Subsequently, wife of Tigalara Kuppanna i.e., Smt.Papamma executed the registered sale deed in favour of Chinnubayamma and confirmed the sale deed executed by Smt.Deveeramma in favour of Smt.Chinnubayamma.
5. It is also the contention of the plaintiffs that the said Chinnubayamma sold ‘A’ schedule property to one Sri.Magaji Muniappa by executing the registered sale deed dated 22.11.1920. Thereafter, the said Magaji Muniappa once again sold the suit schedule ‘A’ property to one Smt.Chinnubayamma by executing a registered sale deed dated 07.04.1924. The said Chinnubayamma sold the Suit Schedule ‘A’ property to Shivasa i.e., grandfather of the first plaintiff and great grandfather of the other plaintiffs by executing a registered sale deed dated 28.06.1926. It is the further case of the plaintiffs that Sri.Shivasa, the forefather of the plaintiffs acquired absolute right, title and possession over the Suit Schedule ‘A’ property way back in the year 1926. The same was enjoyed by the legal heirs and successors of the said Shivasa.
6. It is the contention of the plaintiffs that Shivasa died in the year 1945 leaving behind the four sons by name Dodda Sundarasa, Chikka Sundarasa, Shamisa and Dhondusa. After the death of late Shivasa, there was partition in the family on 12.10.1947 by registering the document. Under the said family partition, Suit Schedule ‘A’ property was allotted to the share of late Chikka Sundarsa, who is father of the first plaintiff.
7. It is the further case of the plaintiffs that from 1947 onwards, said Chikka Sundarsa, father of the first plaintiff and the grandfather of the other plaintiffs was exercising all rights of absolute ownership over the Suit Schedule ‘A’ property. There was a suit in O.S.No.18/1957 filed by one Smt.P.Rajalakshmi seeking possession in respect of Suit Schedule ‘A’ property claiming the rights and title. The said suit was defended by late Chikka Sundarsa who was the second defendant in the said suit. Ultimately, the said suit came to be dismissed on 08.02.1958 confirming the right, title and possession of late Chikka Sundarsa.
8. It is the case of the plaintiffs that right from the year 1920 onwards, it is the plaintiffs’ family who is in possession and enjoyment of the suit schedule property and they are paying necessary tax to the concerned authorities. There was a partition in the family in the year 1987. There are four small houses built in the Suit Schedule ‘A’ property and they have been let out to the tenants by late Chikka Sundarsa.
9. The specific allegation made in the plaint is that defendant Nos.1 to 3 being neighbours of the plaintiffs of Suit Schedule ‘A’ property and their property is situated towards the northern side of the Suit Schedule ‘A’ property bearing Municipal No.39 situated at Kempapura Agrahara now called as Mariyappanapalya, Bengaluru measuring East to West 22 feet and North to South 22 feet. The defendant Nos.1 to 3 are making attempts to encroach the entire Suit Schedule ‘A’ property by misrepresentation and misleading the true facts. The property of the defendants is morefully described in the Suit Schedule ‘B’ property. The other allegations in the plaint that though defendant Nos.1 to 3 are the owners of just 22 feet x 22 feet area, they are claiming right over the Suit Schedule ‘A’ property. From the documents of the defendants, it is crystal clear that the said Smt.Papamma sold to the said Sri.Manickyam Pillai to an extent of East to West 22 feet and North to South 22 feet. But, defendant Nos.1 to 3 are bent upon to encroach the Suit Schedule ‘A’ property. There was a sale deed from Papamma in favour of Sri.Manickyam Pillai on 13.07.1939. Though the property is measuring 22 feet x 22 feet, it is contended by the defendants that it measures East to West 34 feet and North to South 28 feet i.e., more than what they have purchased.
10. It is the further contention of the plaintiffs that Smt.Bhagyamma sold the Suit Schedule ‘B’ property to one Sri.Sanjeevaiah by executing a registered sale deed dated 10.02.1952. In the said sale deed, Smt.Bhagyamma has concocted the measurement. The said Sri.Sanjeevaiah sold the Suit Schedule ‘B’ property to defendant Nos.1 and 2 on 02.09.1956 under the registered sale deed. But, defendant Nos.1 to 3 retained the wrong measurements and boundaries. Defendant Nos.1 to 3, taking undue advantage of the absence of the plaintiffs in person, have hatched a plan to claim over the entire Suit Schedule ‘A’ property. Even the officials of City Survey Department have clarified with regard to the measurement of the Suit Schedule ‘B’ property as 22 feet x 22 feet and number has been assigned as CTS No.2953 and Suit Schedule ‘A’ property is assigned with CTS No.2954. In all the revenue records, measurement of property of the defendants is just 22 feet x 22 feet and not 35 feet x 28 feet.
11. The defendants have also filed the suit against plaintiff Nos.1 to 4 in O.S.No.8669/1998 by making false allegations against them that they have given wrong measurement and description. The plaintiffs appeared before the Court and contested the suit and the same was decreed. As against the same, the plaintiffs filed Regular First Appeal and the same was disposed of giving liberty to the plaintiffs to prefer a comprehensive civil suit. Hence, the suit was filed by the plaintiffs before the Court seeking the relief of declaration, possession and for mandatory injunction and so also to declare the corrections made by the District Registrar as null and void.
12. In pursuance of the suit summons, defendant Nos.1 to 3 have appeared before the Court below and defendant No.4 despite service of summons remained absent and placed exparte. Defendant Nos.1 to 3 filed their written statement and in the written statement, they contended that they are the absolute owners of the property bearing No.39 measuring East to West 34 feet and North to South 28 feet. It is contended that the said property was purchased by Lakshmi Bayamma, mother of the defendant from one Sanjeevaiah. In addition to that on 14.08.1958, it is contended that Sanjeevaiah gave remaining property measuring 34 feet x 16 feet in favour of Lakshmi Bayamma through a deed which was executed in the presence of late P.B.Pawar. Similarly, sale deed dated 2.09.1956 was executed in favour of Lakshmi Bayamma in the presence of D.W.2.
13. It is further contended that defendant Nos.1 and 2 are the absolute owners of the property bearing No.39 measuring East to West 34 feet and North to South 28 feet. The defendants have claimed their right in respect of the Suit Schedule ‘B’ property tracing the title from the year 1939 and subsequent sale deeds and also would contend that they have paid the betterment charges and they are in possession and exercising their absolute right in respect of the said measurement. The defendants have denied the allegations made in the plaint with regard to the defendants having right in respect of 22 feet x 22 feet. It is contended that there is a concoction of the documents produced by the plaintiffs and prayed the Court to dismiss the suit.
14. Based on the pleadings of both the parties, the Trial Court has framed the following issues:
(1) Whether the plaintiffs prove that they are the absolute owners in possession of the suit schedule ‘A’ and ‘C’ property as alleged in the plaint?
(2) If so, whether the plaintiffs further prove that ‘C’ schedule property forms part and parcel of ‘A’ schedule property as alleged in the plaint?
(3) Whether the plaintiffs further prove that the defendants illegally have encroached upon ‘C’ schedule property to the extent of 15 feet x 15 feet and illegally have put up the constructions in the same as alleged in the plaint?
(4) Whether the plaintiffs further prove that the corrections so made in the sale deed dated 13.07.1939 vide order dated 24.4.2002 by the District Registrar is without having any authority, null and void ab-initio as alleged in the plaint ?
(5) Whether the plaintiffs prove the alleged interference into peaceful possession and enjoyment of the suit schedule property by the defendants as alleged?
(6) Whether the defendants prove that suit of the plaintiffs is barred by law of limitation as contended in the written statement?
(7) Whether the plaintiffs are entitled for the relief of declaration as prayed?
(8) Whether the plaintiffs are entitled for the relief of Mandatory Injunction and permanent injunction as prayed?
(9) Whether the plaintiffs are entitled for the relief of possessions of ‘C’ schedule property as prayed?
(10) What decree or order?
15. Plaintiffs in order to substantiate their case, have examined one witness as PW.1 and also got marked documents Exs.P.1 to 55. Defendants also examined one witness as DW.1 and also another witness as DW.2 and on their behalf marked documents Exs.D.1 to 19.
16. The Court below, after considering both oral and documentary evidence answered all the issue Nos.1 to 9 in the negative and dismissed the suit.
17. Being aggrieved by the judgment and decree of dismissal of the suit, the present appeal is filed by the plaintiffs. It is contended in the grounds of the appeal that the Court below has committed an error in dismissing the entire suit of the plaintiffs and also rejected the Commissioner’s Report. The Court below, mechanically without appreciating the documentary evidence on record has erroneously dismissed the suit. Exs.P.35 and 50 are the sale deeds dated 13.07.1939, under which the vendor of the defendants have acquired the title to Suit Schedule ‘B’ property. The measurement of the said property is only 22 feet x 22 feet. The defendants in their written statement have indicated that the property owned by them measures 34 feet x 28 feet and the very mentioning of the measurement itself is erroneous. The Court below has committed an error in not appreciating both oral and documentary evidence. It is well settled position of law that when there is a dispute with regard to the extent of the property, the boundaries mentioned in the schedule would prevail over the measurements. It is further well settled position of law that a person can purchase what is owned by his vendor. In the instant case, the vendor of the defendants has conveyed an extent of 22 feet x 22 feet and the defendants can be the owners only to an extent of 22 feet x 22 feet. The Court below has committed an error in dismissing the suit of the plaintiffs and hence, it requires the interference of this Court.
18. Learned counsel appearing for the appellants/plaintiffs in his arguments vehemently contended that there is no dispute with regard to the plaintiffs are the owners of the property bearing Municipal No.40. Learned counsel also submits that the defendants are also the neighbours and they are the owners of property bearing Municipal No.39. The defendants are not claiming any right in respect of the property bearing Municipal No.40 and in the cross-examination also, they have categorically admitted that plaintiffs are the neighbours. The Court below has committed an error in dismissing the suit of the plaintiffs out rightly in spite several documents are produced before the Court below to evidence the fact that the plaintiffs have derived the title and document Ex.P.2 is the original document which trace the title from 1920 onwards. The grandfather of the first plaintiff and the great grandfather of the other plaintiffs had purchased the property in the year 1926 in terms of Ex.P.2. There was a partition in the family in the year 1947 and subsequently, in the year 1987. The plaintiffs are enjoying the Suit Schedule ‘A’ property and defendants have encroached upon the Suit Schedule ‘C’ property and hence, sought for judgment and decree of possession and so also the relief of mandatory injunction to demolish the said construction and hand over the vacant possession.
19. Learned counsel also contended that the District Registrar has committed an error in rectifying the measurement of the property in the sale deed and the same is null and void. The Court below fails to consider all these aspects while deciding the matter and hence, it requires interference of this Court.
20. On the other hand, learned counsel appearing for respondent Nos.1 to 3 would submit that the measurement in terms of the sale deed executed in favour of one Shivasa is only 21 feet x 22 feet under the sale deed dated 28.06.1926. The plaintiffs have not derived any right, title more than the measurement i.e., 21 feet x 22 feet, but their claim made in the plaint is more than what they have derived. The plaintiffs have not approached the Court with clean hands. That apart, in the partition deed Ex.P.1 dated 23.12.1987, the measurement is shown as 21 feet x 27 feet instead of 21 feet X 22 feet. The plaintiffs made an attempt to encroach upon the property of the defendants and there was no measurement in the earlier partition deed in the year 1947 in terms of Ex.P.7. The Court below has considered both oral and documentary evidence and in view of not furnishing the true facts before the Court below, the Court below has rightly dismissed the suit and hence, there are no good grounds to allow the appeal.
21. Learned counsel also contended that in terms of Ex.P.9, it is shown as vacant site fenced with compound wall and the question of granting any judgment and decree of mandatory injunction does not arise at all and hence, there are no grounds to interfere with the dismissal of the suit.
22. Learned Additional Government Advocate appearing for respondent No.4 would contend that the District Registrar has not committed any mistake and he has only rectified the mistake occurred in the entry found in the Sub Registrar’s record and he has not rectified the registered sale deed of the year 1939. Learned Additional Government Advocate would contend that the original measurement of the property shown in the sale deed of the year 1939 has not been corrected and correction was made only with regard to the error that has been committed in mentioning the extent of the property in the register maintained in the Sub Registrar’s office.
23. Having heard the arguments of the appellants’ counsel as well as the counsel appearing for respondent Nos.1 to 3 and also learned Additional Government Advocate for respondent No.4, the points that arise for my consideration are:-
1. Whether the Court below has committed an error in dismissing the suit of the plaintiffs seeking relief of declaration to declare that the plaintiffs are the absolute owners of the Suit Schedule ‘A’ property?
2. Whether the Court below has committed an error in not granting the relief of possession as claimed in the plaint by the plaintiffs?
3. Whether the Court below has committed an error in not granting the mandatory injunction as sought in the plaint?
4. Whether the Court below has committed an error in dismissing the suit seeking the relief of declaration as against defendant No.4 with regard to the correction made in the Register?
5. What order?
24. Point No.1: The plaintiffs are claiming the title in respect of Suit Schedule ‘A’ property based on the sale deed which is mentioned as Ex.P.6 dated 28.06.1926. On perusal of Ex.P.6, the measurement is mentioned as 21 feet x 22 feet. On perusal of the plaint, the plaintiffs have described the measurement of the Suit Schedule ‘A’ property as East to West 30 feet and North to South 27 feet and in order to substantiate the same, the plaintiffs have not produced any documentary proof for having purchased the property measuring an extent of 30 feet x 27 feet. The defendants are also not claiming the title in respect of the property of the plaintiffs, but their contention is that the description of the Suit Schedule ‘A’ property is not correct. Learned counsel for the respondents also appeared in response to the notice of this Court. They are claiming right based on the partition deed dated 23.12.1987 in terms of Ex.P.1. On perusal of Ex.P.1, the measurement of the property is mentioned as 21 x 22 feet and the original title deed discloses the measurement as 21 feet x 22 feet.
25. Learned counsel appearing for the appellants would submit that the measurement mentioned in Ex.P.2 shows 31 X 27 feet and that the document is the document of the vendor of plaintiffs No.2 to 4 - great grandfather of other plaintiffs and the grandfather of the first plaintiff. It is to be noted that the vendor of the great grandfather of the plaintiffs No.2 to 4 and grandfather of plaintiff No.1 only sold the measurement 21 x 22 feet. Though the vendor was having title in respect of property measuring an extent of 31 x 27 feet, the entire measurement was not sold in favour of the plaintiffs. Hence the very contention of the appellants’ counsel that the property is measuring an extent of 31 x 27 feet cannot be accepted. It is to be noted that when the defendants themselves are not claiming any title in respect of the Municipal property bearing No.40 and their claim is in respect of Municipal property No.39, the Trial Court ought not to have dismissed the suit of the plaintiffs in its entirety. The Court below fails to consider the original measurement mentioned in Ex.P.6. No doubt other documents are relied upon by the plaintiffs in support of their case. Those documents are not the originals but they are only the ministerial documents subsequent to the sale deed of the year 1926. The Court below ought to have taken note of the measurement of the property as 21 feet x 22 feet and also ought to have granted a relief of decree of declaration in respect of property measuring an extent of 21 x 22 feet. No doubt the plaintiffs have made an admission contending that the defendants are only the owners in respect of property measuring an extent of 22 x 22 feet.
26. On the other hand, the defendants have contended that they purchased the property to an extent of 34 x 28 feet vide sale deed dated 2.9.1956. It is to be noted that when the plaintiffs seek the relief of declaration, the plaintiffs have to stand on their own legs not on the weakness of the defendants. It is the duty cast upon the plaintiffs to prove their title in respect of the relief of declaration which they have sought for. The Court below fails to take note of the original document at Ex.P.6 in which the plaintiffs great grandfather had purchased the property to an extent of 21 X 22 feet and it is not the claim of the defendants that they are having title in respect of the said measurement. When the defendants have not claimed any right in respect of the property measuring an extent of 21 x 22 feet, the Trial Court ought not to have dismissed the suit. Hence, I answer point No.1 in the affirmative to the extent of 21 x 22 feet and not as claimed in plaint by the plaintiffs.
27. Point Nos.2 and 3: In respect of the possession and mandatory injunction, the plaintiffs have claimed right in respect of the Suit Schedule ‘C’ property claiming that the Suit Schedule ‘C’ property is the portion of Suit Schedule ‘A’ property and there was encroachment by the defendants. It is to be noted that the very measurement mentioned in Suit Schedule ‘A’ property is not correct and this Court, while answering Point No.1 has come to the definite conclusion that the property measurement is noted as 21 X 22 feet. Hence, the plaintiffs are not entitled for the relief of mandatory injunction and also for the possession as sought and hence, I answer both points in the negative.
28. Point No.4: The very contention of the plaintiffs is that the District Registrar has committed an error in rectifying the measurement of the property in the sale deed. Learned counsel appearing for respondents No.1 to 3 has brought to my notice the original sale deed of the year 1939 and on perusal of the same, which is marked as Ex.D.1, it discloses that the property measures to an extent of 32 x 22 feet and there was no any correction in respect of the original sale deed. Learned Additional Government Advocate appearing for respondent No.4 also contended that the correction was made in respect of the error committed in mentioning the measurement of the property in the register maintained in the Sub Registrar’s office and the same was also based on the representation given by the parties. Hence, the very contention of the plaintiffs’ counsel that the measurement of the original sale deed has been corrected cannot be accepted. It is only the correction in respect of the wrong entry which has been made in the register maintained in the Sub Registrar’s office. Hence, the relief sought for by the plaintiffs also to declare the said correction made by the District Registrar as null and void cannot be accepted. Hence, I answer point No.4 in the negative.
29. Point No.5: In view of the discussion made above, it is made clear that the plaintiffs are entitled for the relief of declaration that they are the absolute owners of the property measuring an extent of 21 x 22 feet in terms of Ex.P.6 and not as claimed in the plaint. Hence, I pass the following :
ORDER (i) The appeal is allowed in part.
(ii) The impugned judgment of the Trial Court is set aside. The plaintiffs are declared as the absolute owners of the property bearing No.40 measuring an extent of 21 feet x 22 feet.
(iii) Office is directed to draw decree in terms of the above order.
(iv) Parties to bear their own costs.
In view of disposal of the appeal, I.A.No.1/2017 does not survive for consideration and accordingly, the same is disposed of.
Sd/- JUDGE PYR